NLRB Issues Proposed Rules on Speedier Union Elections

Friday, June 24, 2011

The National Labor Relations Board (“NLRB”) issued a proposed rule on June 22nd that would “expedite” and “streamline” its election procedures. The proposed rule, which is not in effect, would make several significant changes to the current election process by which unions seek to be the authorized representative for collective bargaining purposes of employees. Unions pushed for these changes, and employers almost universally oppose them. The proposed rule would shorten the election cycle from the current 37.5 day median (from election petition to election vote) to as little as 10-21 days. The proposed rule would also move resolution of voter eligibility determination to after the election (“vote first, decide later if vote may be counted”); reduce the Board’s review of representative cases; require employer disclosure of employee contact information (to allow outside union organizations access to employee information); and allow more electronic filing with the Board.

We believe, as do many commentators, that the Board’s proposed rule is a direct result of the major unions’ lack of success in 2009 and 2010 to have Congress pass the Employee Free Choice Act (“EFCA”). The union proponents were blunt in advocating that EFCA was intended to ease the requirements in organizing employees to support unions and to increase the number of employees represented by unions across the U.S. Currently, only 6.9 percent of private sector American workers are represented by a union; about 11.9 percent including the public sector.

While “streamlining” and “efficiency” are laudable goals, one wonders if the Board has been cumbersome or inefficient previously. As noted, the current time between a petition filed for representation to an election is 37.5 days. (In fact, in FY 2010, despite a 10 percent increase in representation cases, the average time to an election fell to 31 days.) During that time, the employer and union work out election day procedures, employee information is given to the union, notices about the election rules and procedures are prepared and posted, voter eligibility is determined, and employee observers for the election are designated. Also, most importantly, both the employer and union are able to freely communicate about what they offer to employees (and the shortcomings of the other) and employees are able to ask questions and gather information in this election period to become informed prior to the vote. Given the amount of activity that is supervised and handled by the Board in a 38-day period, it seems that in this area the government has already achieved “streamlining” and “efficiency.” However, unions favor quicker elections so that they may communicate their messages to employees without the employer’s knowledge and limit the time the employer has to communicate its message or rebut the union’s statements. Under current law (which would not change under this proposed rule), union speech is subject to little regulation or standards. In contrast, employer speech and conduct is regulated and scrutinized to prohibit promises, interrogation, threats, and surveillance. The union’s desire for expedited elections has won out in this proposed rule.

Action Steps?

The Board has issued a proposed rule, and by law, must allow for public comments for up to 60 days (until August 22, 2011). First, employers may direct comments to the NLRB on its website by following this link or by mail to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington, D.C. 20570. Second, the Board will hold a public hearing in Washington D.C. on July 18-19, 2011, and employers may voice their concerns at the forum.

The Board’s proposed rule on expedited elections, along with its recent proposed rule on “persuader” activity in elections is viewed by many as a one-two punch in favor of union organizing. We also predict that the Board may next issue proposed rules intended to further facilitate union organizing by requiring union access to the employer’s premises, and conducting elections off-site, by mail ballot, or by internet-based voting. You may expect these pro-union organizing measures in advance of the 2012 election cycle.

Scott counsels clients on their “people” issues. Businesses, owners, and boards of directors look to Scott as their outside general counsel to ensure legal compliance of their operations and initiatives. Scott represents businesses before federal and state courts and administrative agencies throughout the country in all areas of employment law, with particular focus on:

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